In the ever-evolving sphere of UK employment law, we are likely to see a wealth of developments over the remainder of 2016, as Parliament enacts new legislation and new cases are heard. We are also expecting, in a number of longer-running cases, appeal judgments that could have potentially significant effects on employment law in the UK and how we advise our clients going forward.
Below we take a look at three key decisions which we are eagerly awaiting in 2016
1. Chesterton Global Limited (t/a Chestertons) –v- Nurmohamed (UKEAT/0335/14/DM): Whistleblowing
In April 2015, the Employment Appeal Tribunal (EAT) looked at the scope of a requirement in the Public Interest Disclosure Act 1998 (the key Act which deals with whistleblowing in England and Wales). Under that Act, in order for a worker's disclosure to be protected, the worker must believe that such disclosure is “in the public interest.”
The public interest test is a relatively new introduction to the UK whistleblowing law, and the legislation and supporting documentation provide limited guidance on what constitutes "in the public interest." The EAT has seemed to adopt a broad interpretation of the concept.
In the Chesterton case, the EAT was asked to look at an employment tribunal’s finding that a disclosure made in the interest of a relatively finite group of 100 or so senior managers employed by Chesterton was in the public interest.
- The EAT dismissed Chesterton’s appeal, finding that:The question for consideration is not whether the disclosure is per se in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest.
- The sole purpose of the introduction of the test was to reverse the effect of the earlier case of Parkins v Sodexho Ltd. In that case, the words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature, and there are no wider public interest implications
The EAT decision has caused employers some concern, as it has the effect of only curtailing the protection afforded to potential whistleblowers in very limited circumstances, where the breach, act or omission alleged is of an entirely personal nature. The disclosure need not be made in the public interest at all—it is sufficient that the worker has a reasonable belief that it is. Accordingly, the test sets a very low bar for claimants to meet.
However, Chesterton has appealed this decision and the Court of Appeal is expected to render a decision this year. It is hoped that the Court of Appeal will seize the opportunity to clarify the "public interest" standard.
2. Dawson-Damer –v- Taylor Wessing LLP ( WLR(D) 361): Subject Access Requests
In the UK, under the country's Data Protection Act 1998 (DPA), a data controller is required to comply with a data subject access request (DSAR) made by any individual whose data it processes, save where the supply of information is not possible or would involve disproportionate effort. Submitting a DSAR is a popular tactic for claimant employees in the UK. Properly complying with a DSAR can be a significant undertaking for the employer and there is currently limited guidance on what would involve "disproportionate effort."
In August 2015, the High Court refused an application for an order compelling Taylor Wessing to comply with a DSAR which, in effect, required the data controller to carry out expensive and time-consuming searches of files dating back over 30 years. The DSAR was requested in order to determine whether or not documents were protected by legal advice privilege for the purposes of disclosure. The High Court held that when dealing with a DSAR, under the "disproportionate effort" exemption, a data controller is only required to supply such personal data as is found after a reasonable and proportionate search. The demands of the claimants were held not to be reasonable and proportionate. Accordingly Taylor Wessing was not required to comply with the request and could rely on a blanket exemption for legal advice privilege.
The claimants in the case have appealed the decision and it is hoped that when this matter comes before the Court of Appeal later this year, it will provide further guidance on what would constitute a reasonable and proportionate search and, indeed, clarify whether that is in fact the right test for determining what would involve disproportionate effort.
We also wait with interest to see what view the Information Commissioner will take of the Court of Appeal's decision and what this may mean in practice for employers in the UK.
3. USA –v- Nolan ( UKEAT 0328/08/CEA): Collective Redundancy Consultation
Where an employer "proposes" to make large-scale redundancies in the UK of 20 or more employees at one establishment within a period of 90 days or less, it must consult with representatives of the affected employees regarding the proposal (see Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992).
The term "proposes" has received much attention in case law, chiefly in relation to whether it adequately reflects the language used in the underlying EU Directive, which requires consultation where collective redundancies are "contemplated."
"Proposing" is generally held to occur at an earlier stage than an actual decision by the employer to make redundancies. However, a "proposal" suggests more than a mere contemplation of the possibility of redundancies. Accordingly, it has been notoriously difficult to determine the point at which the possibility of redundancy becomes more than just that and the obligation to collectively consult is triggered.
In the case of Nolan, Ms. Nolan was made redundant following the US government's decision to close the US Army base in Hampshire, where she worked. There had been no consultation with her representative regarding its decision to close the base; rather, there had only been discussion regarding the consequential redundancies that were likely to occur once the decision to close was made.
In 2009, the EAT held that Ms. Nolan was entitled to a protective award for failure to consult. However, the US government was granted leave to appeal the decision and the Court of Appeal must now determine whether the redundancy consultation obligation under UK law arises a) when the employer is proposing, but has not yet made, a strategic decision that may lead to the redundancies of 20 or more employees or b) once that strategic decision has been made.
This distinction is a significant one for employers with employees in the UK, as it is bound to affect how business decisions are made. We are hoping that the Court of Appeal will provide clarity regarding the point at which the obligation to collectively consult actually arises.